The right to self-determination is an entrenched right and globally recognized norm. However, this right has faced numerous challenges, ambiguities, and disagreements concerning the sovereignty of the state. The absence of any clear standard or criteria coupled with different interpretations of the rights of the people of other regions has made this right contentious. Article 1 of the United Nations Charter accentuates the right of self-determination by placing it among equal rights. However, the ambiguity that persists in the UN charter regarding the right of self-determination signifies the need for the UN to produce a clear definition and specific articles that solely address this right.

Self-determination allows the inhabitants of any region with similar ethnic, cultural, values, religion, etc. to forge their path of independence. This right allows people to decide their political destiny within a state through a range of means such as referendums. The people must declare a state for themselves by fulfilling four qualifications specified in the 1933 Montevideo Convention. After fulfilling the criteria, the declaration to the international community is of significance for those pursuing self-determination However, the right to self-determination remains in constant conflict with the sovereignty of the state. The immense challenge posed towards the right of self-determination by the international community is the inconsistent and confusing criteria within the Montevideo Convention. This ambiguity results in differing interpretations by the international community encouraging the states, to meet the guidelines, to change their behavior. 

Kosovo’s independence is a prime example of the jurisdictional constraints posed by the right of self-determination. International Court of Justice (ICJ) took up the case in its advisory role and regarded the issue of self-determination and as beyond its scope. Recalling Kosovo’s case for independence, a clear conflict between state sovereignty and self-determination can be witnessed. This sort of conflict between the two has The struggle for self-determination by the Kosovo Albanians were perceived as violations of the sovereignty and territorial integrity by Serbia (former Yugoslavia). The clash between the right of self-determination demanded by the Kosovo Albanians and the violations of the territorial integrity and sovereignty, perceived by Serbia resulted in further segregation between, ideological, social, and cultural groups, resulting in increasing demands for territorial successions perpetuating violence.

The enactment of Resolution 2649 by the United Nations General Assembly (UNGA) was a significant step in making the notion of self-determination ambiguous. Although this resolution provides a clear account of the denial of self-determination to peoples face hegemony and colonial rule, it has failed to explain the multiple factors that still represent this kind of control. Many resolutions passed by the UNGA are self-contradictory. On one hand, it accentuates the significance of the provision of the right of self-determination. But on the other hand, it halts any sort of intervention in the internal matters of states by terming it as a contravention of the UN Charter. This results in a dilemma as if the UNGA is mindful of meddling in domestic affairs of any state to this extent, the grounds to impose the right of self-determination become questionable.

The independence of Kosovo from Serbia has further made the definition and the grounds for self-determination unclear. This separation of Kosovo has enormously added to the already undefined theory of self-determination. This ambiguity is multiplied by the UN charter’s failure to clearly define ‘self-determination’. Article One of the United Nations Charter has made the difference between identifying an aggressor and a victim even more blurred and difficult. The Albanians of Kosovo, who were guaranteed the external support from the outside , were encouraged to inflame the already hostile Serbian forces into perpetrating severe human rights infringements. This all makes the identification between a victim and an aggressor increasingly challenging, leading to enhanced ambiguity on the exercise of self-determination in hostile situations such as that in Kosovo.

Keeping in mind the subjugation of minorities in Kosovo, extending support to Kosovo’s secessionist group and calling their movement an act of self-determination appears disquieting. The issue of subjugation in Kosovo were undertaken by the General Assembly and a resolution was agreed in 2000. In 2000, the Albanian population reached almost 85.3% of the total population. A UNGA conference on the issue of Kosovo a year before the recognition of the violent crimes and human rights violations inflicted on the Albanians took place in France. American officials largely favored and supported the right of self-determination to be granted to the Albanians through a referendum. American officials at the conference also asked for a

the safe evacuation of NATO troops. This Rambouillet conference was immensely criticized, deemed a fierce attempt to prepare the ground for the NATO forces to attack areas of Yugoslavia, particularly the Kosovo province through air and missile attacks. This conference, as well as the steps taken to ensure the liberation of Kosovo, were termed as an explicit infringement of the principles of the General Assembly. This interference in the domestic and internal matters of Serbia which was prohibited by the guidelines of UNGA was a sheer infringement of the sovereign right of the people of Serbia. The people of Serbia were forced to submit to the dictatorial secessionist agreement of Rambouillet. In 1991, the United States had categorically abstained from supporting the secession in Yugoslavia and called for the resolution of the dispute with consensus and peaceful means. Despite this, in 2008 its stance shifted. Soon the United States interfered in the internal affairs of Yugoslavia and extended its support for the secession in a sovereign state while subjugating the principles and guidelines detailed by the General Assembly.

In 2008, the fate of the Albanians in the Kosovo province was decided with the referendum where almost 90% of inhabitants took part in the electoral process. Kosovo declared itself an independent and sovereign republic. After gaining independence, the next challenge for Kosovo was (and still is) to gain recognition from the international community. Right after the referendum, most of the European Community considered the independence of Kosovo. It refused the request of Kosovo for recognition as a sovereign and independent state because of the principle that was based in the former Yugoslavia. The European community mainly relied on the 1943 constitutional principle which stated that the status of nations and extension of recognition shall be made to the nations, not the nationalities. This deprived the Albanians in terms of the constitutional interpretation of eligibility to exercise the right to gain independence via self-determination. Exercising the right of self-determination is feeble when a group doesn’t fit the criteria for self-determination of being a minority, as seen in the Albanians who were a majority segment of the population in the contentious and disputed Kosovo Provinces. This led to making the arguments for self-determination utterly weak and compromised. If the principle of self-determination was based on such an idea, then every other group in the world would demand a separate homeland by exercising the right of self-determination. Self-determination is a tricky domain, with the potential to lead to both interstate and intrastate conflicts, disputes if applied to every circumstance. The notion of self-determination has been immensely criticized by various scholars for its vague definition that can fluctuate depending on where it is being applied. The supporters of the idea of self-determination apply the idea based on the notion of ‘majority population’ which is similar in meaning to the meaning of nation. Article 5 of the UN Charter renders the idea of “majority rule” even more unclear. The absence of specificity and clarity in Article 5 of the UN Charter leaves the doctrine of self-determination undefined and prone to the varying understandings of the legal community.

Kosovo does not qualify for the qualifications of statehood stated in the Montevideo Convention. Apart from having a “permanent population’ who does not belong to the same ethnicity and a defined territory that may be split in the future, it fails to meet other qualifications. The problem with the success of any secessionist movement is that, if it is succeeded, what will happen to the people who did not support the movement and therefore became a new minority? The success of the secessionist movement places the minority in utter disguise as it will now be prone to discrimination and oppression from the majority. Any past freedom of movement, religion, speech or expression could be curtailed and even abolished in some cases. Despite the common territory, the ideological, cultural, and ethnic differences in Kosovo could lead to further division in the region. It therefore fulfilled almost two elements of the qualifications of statehood, but also failed to comply with the other two elements of statehood stated in the Montevideo Convention. 

A clear set of jurisdictional constraints on the right of self-determination in light of the Montevideo convention is evident. This is partly because of the ambiguity of self-determination. On the part of the UN Charter, particularly Article 1, there exists an absence of clarity which contributes to further ambiguity in defining the doctrine of the right of self-determination. The absence of specificity and clarity in Article 5 of the UN Charter leaves the doctrine of self-determination further undefined and prone to the varying understandings in the legal community. This varied interpretation of the doctrine has resulted in a scorching criticism of the principle. Defining a clear standard and setting a criterion for the right to self-determination to take place efficiently and without exploitation of this right is inevitable. The inconsistent application of the Montevideo Convention further signifies the need for the international community to innovate and rethink the requirements of statehood.

Riaz Ahmed Kakar is a student currently pursuing a Bachelor's degree in International Relations at the National Defense University in Islamabad. Mr. Kakar's academic pursuits are rooted in the fields of International Relations, Geopolitics, Climate Change, and the intricate dynamics of International and Regional Organizations. His scholarly interests also extend to the examination of Peace and Conflicts, where he seeks to unravel the multifaceted factors influencing global stability.

References

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Richard N. Rosecrance, A. A. (2006). No More States?: Globalization, National Self-determination, and Terrorism. Rowman & Littlefield Publishers, Inc.

Sasich, A. M. (2012). The Right to Self-Determination and its Implication on the Sovereign Right of States: The Inconsistent Application of International Standards for Independence with Respect to Kosovo. Michigan State International Law Review.

Thomas, R. G. (2003). Yugoslavia Unraveled: Sovereignty, Self-Determination, Intervention. Lanham, Boulder and New York: Lexington Books.